judgment

State ADI 0804739-62.2021.8.22.0000 (Jaci-Paraná Extractive Reserve and Guajará-Mirim State Park) - judgment

Litigation

Sabin

petition

State ADI 0804739-62.2021.8.22.0000 (Jaci-Paraná Extractive Reserve and Guajará-Mirim State Park) - petition

State ADI 0804739-62.2021.8.22.0000 (Jaci-Paraná Extractive Reserve and Guajará-Mirim State Park) - Other

Filing Year For Action

This is a State Direct Action of Unconstitutionality, with a request for a precautionary measure, filed by the Public Prosecutor's Office of the State of Rondônia (MPRO) due to the publication of state Complementary Law (LC) 1.089/2021, initiated by the State Governor, questioning in particular: (i) art. 1º, caput, and its paragraphs 1º and 2º; (ii) art. 2º, caput and paragraphs 1º and 2º; (iii) art. 15, caput and sole paragraph; (iv) art. 17, caput and its items; and (v) Annexes I, II, V, VI, VII and VIII. The author points out that the LC reduces the area of the Jaci-Paraná Extractive Reserve and the Guajará-Mirim State Park and, as compensation, creates the Ilha das Flores and Abaitará State Parks, the Bom Jardim and Limoeiro Sustainable Development Reserves and the Pau D'Óleo Fauna Reserve. In addition, the LC allows the environmental regularization of the property or possession of the owners or possessors in the disused areas of the Extractive Reserve and the State Park. It states that these Conservation Units (UCs) are illegally occupied and deforestation occurs to the detriment of the rights of traditional populations (extractivists and others), being used mainly for livestock farming. The removal of these areas directly impacts the Uru-eu-wau-wau, Karipuna, Igarapé Lage, Igarapé Ribeirão, Karitina Indigenous Lands and the peoples in voluntary isolation in the surrounding region. 

It argues that the reduction in Conservation Units, by harming environmental protection and contradicting the purpose for which the UCs were created, violates the right to an ecologically balanced environment and the duty of the public authorities and the community to defend and preserve it for present and future generations. It points out that the creation of new protected areas by the LC is insufficient and is an environmental step backwards. In addition, it argues that no hearings were held with the communities affected during the project that resulted in the LC and that no technical studies were carried out to remove the areas, which violates the principles of prevention and precaution. It argues that the precautionary measure should be granted because there is a risk of irreversible environmental damage and an imminent risk to the lives of indigenous peoples and traditional populations. It emphasizes that the Jaci-Paraná Extractive Reserve is already the 2nd most deforested in the Legal Amazon, while the Guajará-Mirim State Park is the 9th most deforested. Finally, it requests, among other things: (i) an injunction suspending the effectiveness of the provisions in question; and (ii) on the merits, a declaration that the provisions are unconstitutional, with the decision to be communicated to the Legislative Assembly to suspend their implementation.


In a monocratic decision, the Reporting Judge, José Jorge Ribeiro da Luz, decided that the Court should rule only the merits of the action, because, since the precautionary measure in the ADI must be granted by an absolute majority of the members of the Court, the time for both would end up being the same. In the same decision, he granted the request for admission as amicus curiae of the Minas Novas Rural Producers Association (ASPRUMIN).


Subsequently, the request for admission as amicus curiae of the Association for Ethno-Environmental Defense (KANINDÉ), the Organization of Indigenous Peoples of the Guarajá-Mirim Region (Oro Wari), Ecoporé Ecological Action (ECOPORÉ), the SOS Amazon Association (SOS Amazônia) and the World Wildlife Fund (WWF-Brazil) was granted. It is noteworthy that, in their amicus curiae briefs, the organizations, in defending the unconstitutionality of LC 1.089/21, pointed out that the rule represents damage to biodiversity, to local traditional and indigenous populations and to climate stability by summarily acquitting environmental offenders who have occupied and degraded protected areas, receiving the seal of approval from the Government. They highlighted the violation of the principles of prevention and precaution, set out in the National Environmental Policy - PNMA (Federal Law 6.938/1981) and the National Policy on Climate Change - PNMC (Federal Law 12.187/2009), as well as the violation of the right to prior, free and informed consultation of affected indigenous and traditional peoples, in accordance with Convention 169 of the International Labor Organization (ILO). They argued that the reduction of UCs results in climate damage, violating the right to climate stability provided for in art. 225 of the Federal Constitution and also argued that there is a failure by the Government to implement the PNMC and the State Policy on Climate Governance and Environmental Services - PGSA (State Law 4.437/2018).

A ruling was rendered, in line with the vote of the Reporting Judge, who, by a majority, declared the unconstitutionality of the contested provisions, as well as recognizing the unconstitutionality of LC 1.096/2021, which amends the wording of §1 of art. 2 of LC 1.089/2021. It concluded that there were no prior studies for the disqualification of the Units of Conservation, in violation of the precautionary principle, the principle of prevention and the prohibition of environmental retrogression. He stressed that it is the duty of the Government to protect the environment, and that the justification for anthropization and degradation in the areas is flawed. It also considered that the principles of ubiquity and intergenerational solidarity had been violated. It is worth highlighting the vote of Judge Miguel Monico Neto, who, although also recognizing the unconstitutionality of the rules, was defeated in the part where he stressed the need for a structuring measure due to the abuse of the legislative institutional function of the State Governor and the Legislative Assembly. The judge emphasized the importance of the UCs for protection against the climate emergency and argued that the environmental impacts resulting from new agricultural projects in the area, if the reduction in protected areas were to be implemented, would represent a threat to the environment, water security, the safety of the climate system, soil fertility, atmospheric air, fauna and flora, the health and lives of present and future generations, as well as the sustainability of agriculture and livestock and the export of state and Brazilian products.

An interlocutory appeal (ARE 1417998) was filed against the decision to reject the extraordinary appeal, which was denied admissibility due to the lack of pre questioning and the need to discuss factual matters. The Minas Novas Rural Producers' Association (Asprumin) was admitted as amicus curiae in the ARE. Subsequently, an interlocutory appeal was filed in the ARE, which was not upheld on the same grounds as the contested decision.

The appeals were unsuccessful and, as a result, the lawsuit was dismissed.